What is Canada's Packaging and Labeling Regime?

Canada's legal packaging and labeling regime is a maze of federal-level legislation that is primarily aimed at consumer products. The Consumer Packaging and Labeling Act ("the CPLA") is the main statute that governs the vast majority of packaging and labeling requirements for consumer products and sets minimum packaging and labeling requirements.

Whereas the CPLA is the touchstone for general minimum packaging and labeling requirements and is applicable to general consumer products, a myriad of other federal legislation exists that additionally governs specific product types, such as the Food and Drugs Act ("the FDA"), the Hazardous Products Act, the Textile Labeling Act, the Tobacco Products Control Act, and the Wine Content and Labeling Act. The specificity of the names of the legislation indicates their subject matter.

What are the Basic Labeling Requirements?

As prescribed by the CPLA, all labels must contain at a minimum:

• (1) a declaration of the net quantity,
• (2) the identity of the goods in generic terms, and
• (3) the disclosure of identity and place of business of the manufacturer OR the company that packaged the product for resale.

The CPLA mandates the format and placement of the required information. For example, the information contained at (1) and (2) above must be displayed on the principal display panel (the part of the label that is normally displayed at the point of sale) in both English and French. Moreover, the information must be clearly and prominently displayed, easily legible and in distinct contrast to other information on the label. With respect to (3) above, the information can be displayed in either French or English and does not need to be on the principal display panel. It can appear anywhere except for the bottom of the container. The CPLA does mandate that the information must be at least 1.6mm in height.

With many consumer products, however, the above requirements are just a starting point. For example, the FDA mandates that food products have additional bilingual requirements: the common name of the product, the durable life and packaging date and the list of ingredients must all be displayed in French and English.

Special requirements are in place for imported products. Regardless of whether the products were imported in final packaged form or imported and then packaged in Canada, the following disclosures are required:

• (1) the name and address of the Canadian seller, preceded by the works "imported by" or "imported for",
• (2) the country of origin of the product must be immediately adjacent to the information contained at (1), and
• (3) the name and address of the manufacturer outside of Canada.

What are the Restrictions?

The CPLA prohibits the inclusion of misleading representations, regardless of whether the representations appear on product labels or in association advertising. The CPLA includes a non-exhaustive list of what may constitute a misleading representation ranging from claiming that a product contains a substance that it does not, to illustrations relating to the origin of the product.

Regulating Specific Products Claims

Not only are regulations set for what information must be contained on the packaging. Regulations have also recently been created for specific product claims.

In June 2009, new regulations were established that deal with the certification and labeling of organic food. Only food that is at least 95% organic can be certified as organic and is allowed to bear the CANADA ORGANIC logo (or include claims such as "organically grown" or "organically raised", for example, on the packaging). If the product is between 70% to 95% organic, the above organic labels cannot be used; however, the label can include the statement that XX% of the product is organic, for example.

Perhaps in light of the anticipated wave of patriotism that would be reflected in marketing campaigns during the winter Olympics, the Competition Bureau released guidelines in July 2009 relating to the claim that a product was either a Product of Canada or Made in Canada. Claiming a product is a "Product of Canada" has a high threshold and requires that:

• 1. the last substantial transformation of the product must have occurred in Canada, and
• 2. all or virtually all (98%) of the total direct costs of producing/manufacturing the product has been incurred in Canada.

"Made in Canada" claims are a little more lax and require that:

• 1. the last substantial transformation of the product must have occurred in Canada,
• 2. at least 51% of the total direct costs of producing/manufacturing the product has been incurred in Canada, and
• 3. the claim must be accompanied by qualifying verbiage such as "Made in Canada, with imported parts", for example.

These guidelines are not enforceable themselves but can trigger false/misleading labeling/advertising claims in the CPLA, FDA etc.

Conclusion

The above is just a brief outline of some of the packaging and labeling requirements for general consumer products. Each of the CPLA and the FDA, and their respective governing regulations, are lengthy. The FDA regulations alone, for example, are in excess of 600 pages of detailed packaging and labeling requirements that extend into very specific detail. Requirements vary significantly according to the type of product (i.e. cosmetics v. drugs, vitamins v. prescription drugs etc.) If you have any questions for a specific group of products, please do not hesitate to contact me.

Ashlee Froese
Business Law Group
Lawyer
Trademark Agent
Tel: 905.276.0406
E-mail: afroese@kmblaw.com

The comments in this newsletter are of a general nature and are not designed to replace professional advice in specific situations. If you would like extra copies of this newsletter, or you know of anyone who would be interested in joining our mailing list, please contact Cheryl Woolcott at (905) 276-9111.